Pony Express Courier Corp.

National Labor Relations Board - Board Decisions

Jul 27, 1993

311 N.L.R.B. 1213 (N.L.R.B. 1993)

1213
311 NLRB No. 158
PONY EXPRESS COURIER CORP.
Pony Express Courier Corp. and General Team-
sters Local 217. Case 26–CA–15635
July 27, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On June 2, 1993, the General Counsel of the Na-
tional Labor Relations Board issued a complaint alleg-
ing that Pony Express Courier Corp., the Respondent,
has violated Section 8(a)(5) and (1) of the National
Labor Relations Act by refusing the Union’s request to
bargain following the Union’s certification in Case 26–
RC–7535. (Official notice is taken of the ‘‘record’’ in
the representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respond-
ent filed an answer admitting in part and denying in
part the allegations in the complaint.
On June 21, 1993, the General Counsel filed a Mo-
tion for Summary Judgment. On June 24, 1993, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed no re-
sponse.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain but attacks the validity of the certification on
the ground that the employees in the certified unit are
guards within the meaning of Section 9(b)(3) of the
Act, and that, as the Union admits nonguards to mem-
bership, the Union cannot be certified for such a unit.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and
place of business in Jackson, Tennessee, has been en-
gaged in the interstate transportation of commodities.
During the 12-month period ending May 31, 1993,
the Respondent, in conducting its business operations,
derived gross revenues in excess of $50,000 for the
transportation of freight and commodities from the
State of Tennessee directly to points outside the State
of Tennessee. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that General
Teamsters Local 217, the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held April 23, 1993, the
Union was certified on May 3, 1993, as the collective-
bargaining representative of the employees in the fol-
lowing appropriate unit:
Included: All full-time and regular part-time cou-
rier guards employed by the Employer at its
Jackson, Tennessee facility, including employee
vehicle lease courier guards.
Excluded: All office clerical employees, sales em-
ployees, dispatchers, professional employees,
guards and supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since May 11, 1993, the Union has requested the
Respondent to bargain, and, since May 17, 1993, the
Respondent has refused. We find that this refusal con-
stitutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after May 17, 1993, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Pony Express Courier Corp., Jackson,
Tennessee, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with General Teamsters
Local 217, as the exclusive bargaining representative
of the employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
Included: All full-time and regular part-time cou-
rier guards employed by the Employer at its
Jackson, Tennessee facility, including employee
vehicle lease courier guards.
Excluded: All office clerical employees, sales em-
ployees, dispatchers, professional employees,
guards and supervisors as defined in the Act.
(b) Post at its facility in Jackson, Tennessee, copies
of the attached notice marked ‘‘Appendix.’’1 Copies of
the notice, on forms provided by the Regional Director
for Region 26 after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with General Team-
sters Local 217 as the exclusive representative of the
employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
Included: All full-time and regular part-time cou-
rier guards employed by the Employer at our
Jackson, Tennessee facility, including employee
vehicle lease courier guards.
Excluded: All office clerical employees, sales em-
ployees, dispatchers, professional employees,
guards and supervisors as defined in the Act.
PONY EXPRESS COURIER CORP.